Filed: September 18, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-6546

(CA-94-1633-2-21AK)

Darryl L. Wright,

Plaintiff - Appellant,

versus

Larry E. Oliver, etc., et al,

Defendants - Appellees.

ORDER

The Court amends its opinion filed August 15, 1996, as

follows:

On page 5, first full paragraph, line 4 -- the phrase "were

expunged in November 1990" is corrected to read "were favorably

terminated in November 1990 . . . ."

For the Court - By Direction

/s/ Patricia S. Connor

Acting Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DARRYL L. WRIGHT,

Plaintiff-Appellant,

v.

No. 95-6546

LARRY E. OLIVER, Lieutenant; EDDIE

FRAZIER, Detective,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

William B. Traxler, Jr., District Judge.

(CA-94-1633-2-21AK)

Submitted: July 9, 1996

Decided: August 15, 1996

Before MURNAGHAN, HAMILTON, and WILLIAMS,

Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded for further proceedings by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Darryl L. Wright, Appellant Pro Se. James Albert Stuckey, Jr.,

STUCKEY & KOBROVSKY, Charleston, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Darryl L. Wright, a South Carolina prisoner, brought this action

pursuant to 42 U.S.C. § 1983 (1988) seeking monetary damages for

alleged civil rights violations in connection with his arrest on state

drug charges. Concluding that Wright's action was barred by the

applicable statute of limitations, the district court entered judgment in

favor of Defendants. We placed this case in abeyance pending a decision in Brooks v. City of Winston-Salem, ___ F.3d ___, 1996 WL

288947 (4th Cir. June 3, 1996) (No. 94-7063). Now that Brooks has

been decided, we affirm in part, vacate in part, and remand for further

proceedings.

Wright claims that in 1989, the Defendants entered into a conspiracy to violate his Fourth Amendment rights, that Defendant Eddie

Frazier "planted" cocaine on him, and that in 1990, both Defendants

unlawfully arrested him pursuant to a warrant and subsequently

attempted to coerce him into pleading guilty. Wright further avers that

$48,000 was unlawfully seized from him and that a conspiracy

existed between Defendants and the state's attorney.

The magistrate judge filed a report recommending dismissal of the

action on statute of limitations grounds. The magistrate judge reasoned that the search warrant and arrest warrant were dated August

1990, and Wright's complaint made reference only to 1989. Therefore, the applicable three-year statute of limitations had expired well

before Wright filed his complaint in May 1994.1

_________________________________________________________________

1 Since there are no federal statutes of limitations for § 1983 claims, the

state statute governing personal injury claims provides the applicable

limitations period. Wilson v. Garcia, 471 U.S. 261, 276 (1985). In South

Carolina, for personal injury actions accruing on or after April 5, 1988,

the limitations period is three years. S.C. Code Ann. § 15-3-530(5) (Law.

Co-op. Supp. 1995); see also Simmons v. South Carolina State Ports

Auth., 694 F.2d 63, 64 (4th Cir. 1982) (citing to previous version of statute).

 2
In his objections to the magistrate judge's report, Wright argued

that the statute of limitations should have been tolled. He contended

that he "has been imprison [sic] non stop, since October 27, 1990"

(apparently on another charge) and that he "first learned of the Defendants engaging in a Conspiracy to violate [his] Civil and Constitutional Rights, on or about August 14, 1990." Further, Wright alleged

that his cause of action did not accrue until November 1990 when his

August 1990 arrest was judicially expunged. Therefore, according to

Wright, since he was incarcerated at the time of the accrual of his

cause of action, he was entitled to a tolling of the statute.

The district court sua sponte dismissed Wright's suit pursuant to

Fed. R. Civ. P. 12(b)(6), reasoning that all of Wright's causes of

action accrued in August 1990 when he learned of the conspiracy.

Since Wright was not imprisoned until October, the district court concluded that he was not entitled to a tolling of the statute. The court

did not address Wright's expungement argument.

Pursuant to S.C. Code Ann. § 15-3-40 (Law. Co-op. Supp. 1995),

a person imprisoned on a criminal or civil charge at the time the cause

of action accrues is entitled to have the statute of limitations tolled

until five years beyond the applicable limitations period or such time

as he or she is released from prison. In order to toll the statute of limitations, the plaintiff must have been in prison at the time his causes

of action accrued.

Wright contends that he has been imprisoned continuously since

October 1990. Therefore, if Wright's claims accrued at the point in

time that he discovered the conspiracy (August 1990), his claims are

barred. However, if Wright's claims did not accrue until such time as

the charges were expunged (November 1990), his claims were timely

filed, because the statute would have been tolled.

The Supreme Court stated in Heck v. Humphrey, ___ U.S. ___, 62

U.S.L.W. 4594, 4597 (U.S. June 24, 1994), that a prisoner attacking

the legality of his conviction or confinement

has no cause of action under § 1983 unless and until the

conviction or sentence is reversed, expunged, invalidated, or

impugned by the grant of a writ of habeas corpus.

 3
In its discussion, the Court noted that its holding did not create a statute of limitations problem, because a § 1983 claim attacking the legality of a conviction or sentence, like a malicious prosecution action,

would not arise until the conviction or sentence was invalidated. Id.

at 4597-98.

In Brooks, we discussed the application of Heck to various causes

of action:

a § 1983 action that would not render a conviction or sentence invalid and that seeks to recover damages other than

those resulting from conviction or sentence was cognizable

and could proceed, assuming no other bar to the action was

present, even though the plaintiff's conviction or sentence

had not been reversed . . . We gather that if such claims

properly may go forward, despite the lack of a disposition

of the criminal charges that is favorable to the§ 1983 plaintiff, then these claims must have accrued.

1996 WL 288947 at *3 (emphasis in original) (citations omitted).

However, we noted in Brooks that § 1983 actions which require proof

of termination of the criminal proceeding favorable to the accused do

not accrue until such favorable termination is obtained. Id. at *4.

Wright's complaint alleges that Defendants conspired to violate his

Fourth Amendment rights, conspired to obstruct justice, and engaged

in behavior constituting malicious prosecution.2 Addressing the conspiracy claims first, the accrual of such civil rights conspiracy claims

is subject to the "knew or should have known" rule. See Hunt v.

Bennett, 17 F.3d 1263, 1266 (10th Cir.), cert. denied, ___ U.S. ___,

63 U.S.L.W. 3259 (U.S. Oct. 3, 1994) (No. 93-9079). That is, the

action arises when the plaintiff possesses sufficient facts about the

harm done to him that reasonable inquiry will reveal his cause of

action. Brooks, 1996 WL 288947 at *2. This general rule applies

_________________________________________________________________

2 In his pleadings, Wright uses the term "false arrest." However, his

arrest was made pursuant to a warrant that was allegedly lacking in probable cause. Such allegations state a claim for malicious prosecution and

not false arrest, which addresses only illegal warrantless arrests. Brooks,

1996 WL 288947 at *2.

 4
because favorable termination is not an element of a civil rights conspiracy claim. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.

1994), cert. denied, ___ U.S. ___, 62 U.S.L.W. 3487 (U.S. Jan. 24,

1994) (No. 93-882). Since Wright admits that he learned of the conspiracy in August 1990, his conspiracy claims accrued at that time.

Because these claims accrued almost four years before suit was filed,

they are time barred under the applicable three-year statute of limitations.

Wright's malicious prosecution claim, however, requires a different result. Such a claim accrues at the favorable termination of the relevant criminal proceeding. Brooks, 1996 WL 288947 at *4. Assuming

Wright's allegations that his charges were favorably terminated in November

1990, at a point when he was in prison, are true, the statute of limitations on his malicious prosecution claim was tolled and his claim was

therefore filed before the expiration of the limitations period. In addition, Wright's allegations that the Defendants arrested him pursuant

to legal process that was not supported by probable cause and that the

criminal proceeding terminated in his favor are sufficient to state a

§ 1983 malicious prosecution claim. See Brooks, 1996 WL 288947 at

*4.

Therefore, we hold that the district court properly dismissed as

time barred Wright's § 1983 claim to the extent it was based on a civil

rights conspiracy. However, on the record presently before the court,

the district court erred in concluding that Wright's action was

untimely to the extent that his complaint alleged an unconstitutional

arrest accomplished pursuant to a warrant. While we recognize that

the court did not have the benefit of our opinion in Brooks, a remand

for further proceedings with respect to this claim is nonetheless

required. Accordingly we affirm in part, vacate in part, and remand

for further proceedings. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

FOR FURTHER PROCEEDINGS

 5